Citation Nr: 0531953
Decision Date: 11/25/05 Archive Date: 12/02/05
DOCKET NO. 03-25 449 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to the assignment of an initial rating in
excess of 10 percent for service-connected bilateral hearing
loss.
2. Entitlement to service connection for a peripheral
vestibular disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Meawad, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1942 to
December 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which granted service connection for bilateral
hearing loss and assigned a 10 percent rating (the veteran
appeals for a higher rating) and denied service connection
for a peripheral vestibular disorder.
A claim placed in appellate status by disagreement with the
initial rating award and not yet ultimately resolved, as in
this case with the hearing loss issue on appeal, is an
original claim as opposed to a new claim for increase.
Fenderson v. West, 12 Vet. App. 119 (1999). In such cases,
separate ratings may be assigned for separate periods of time
based on the facts found, a practice known as "staged"
ratings. Id.
FINDINGS OF FACT
1. VA has made all reasonable efforts to assist the veteran
in the development of his claims and has notified him of the
information and evidence necessary to substantiate his
claims.
2. The veteran's service-connected bilateral hearing loss is
currently manifested by average pure tone thresholds of 59
decibels in the right ear and 54 decibels in the left ear,
with speech recognition ability of 78 percent in the right
ear and 76 percent in the left ear.
3. There is no medical evidence of a peripheral vestibular
disorder or a disability manifested by disequilibrium until
decades post-service and there is no competent evidence of a
nexus between a current diagnosis of such and any incident of
service, to include excessive noise exposure as the result of
combat duty.
CONCLUSIONS OF LAW
1. The criteria for an initial or staged rating in excess of
10 percent for service-connected bilateral hearing loss have
not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.85, 4.86,
Diagnostic Code 6100 (2005).
2. The criteria for entitlement to service connection for a
peripheral vestibular disorder have not been met.
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to notify and assist
VA has a duty to notify claimants for VA benefits of
information necessary to submit to complete and support a
claim and to assist claimants in the development of evidence.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2005). In this case, VA's duties have been fulfilled to the
extent possible.
Specifically, VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to provide, and
(3) that the claimant is expected to provide. In what can be
considered a fourth element of the requisite notice, VA must
"also request that the claimant provide any evidence in the
claimant's possession that pertains to the claim." 38
C.F.R. § 3.159(b)(1) (2005); see 38 U.S.C.A. § 5103A(g) (West
2002).
VA has satisfied its duty to notify by means of letters from
the RO to the veteran in December 2002 and December 2003.
The veteran was told of the requirements to successfully
establish service connection and an increased rating, advised
of his and VA's respective duties, and asked to submit
information and/or evidence pertaining to the claim to the
RO. The timing and content of these letters complied with
the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b). See Pelegrini v. Principi, 18 Vet. App. 112
(2004).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2005). All identified, pertinent evidence, including the
veteran's service medical records and post-service VA
treatment records, has been obtained and associated with the
claims file. There is no indication of any relevant records
that the RO failed to obtain.
As to any duty to provide an examination and/or seek a
medical opinion for the veteran's claim, the Board notes that
in the case of a claim for disability compensation the
assistance provided to the claimant shall include providing a
medical examination or obtaining a medical opinion when such
examination or opinion is necessary to make a decision on the
claim. An examination or opinion shall be treated as being
necessary to make a decision on the claim if the evidence of
record, taking into consideration all information and lay or
medical evidence (including statements of the claimant)
contains competent evidence that the claimant has a current
disability, or persistent or recurring symptoms of
disability; and indicates that the disability or symptoms may
be associated with the claimant's active service; but does
not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A(d) (West
2002); 38 C.F.R. § 3.159(c)(4) (2005).
In this case, the veteran has been afforded appropriate
examinations. The audiological evaluation was thorough in
nature and adequate for rating purposes. As to the claim for
service connection for a vestibular or equilibrium disorder,
there is no service or post-service medical evidence until
decades after the veteran's separation from service in
December 1945. An ENT examination was also performed in
conjunction with this appeal. The Board finds that these
examinations, along with the other relevant evidence of
record, are sufficient to decide the claims on appeal. There
is no duty to provide another examination or medical opinion.
Id.
The duty to notify and assist having been met by the RO to
the extent possible, the Board turns to the analysis of the
veteran's claim on the merits.
II. Factual background
As noted above, the veteran had active duty from October 1942
to December 1945. There are no service medical records in the
claims file. The National Personnel Records Center (NPRC)
has indicated that these records were apparently destroyed in
the fire that occurred there in 1973. The veteran's DD-214
shows that he had engaged in combat with the enemy during his
World War II service.
The veteran received VA medical treatment beginning in April
2002. In October 2002, he complained of increasing loss of
balance of three years duration. He reported that his
balance was worse in the afternoon, but would improve after
eating and resolved when he sat down. The veteran also gave
a history of a concussion in 2000, which aggravated the
condition. He denied having vertigo or tinnitus.
In March 2003, the veteran was afforded a VA examination.
The claims file was reviewed. At that time, he complained of
hearing loss and head noise. He reported a significant
history of noise exposure without ear protection during
service and some noise exposure after service. The veteran
further stated that occasional bilateral head noise began in
the early 1980s, which he described as a high-pitched ringing
sound that occurred once every 10 days and lasted for 15
minutes. Additional history included having an ear infection
with dizziness in 1984, hypertension, a seizure disorder
secondary to a head injury, and a heart attack. He denied
having facial numbness or ear discomfort.
The audiological examination in March 2003 revealed pure tone
thresholds, in decibels, as follows:
HERTZ
1000
2000
3000
4000
RIGHT
40
65
60
70
LEFT
35
45
65
70
Speech audiometry revealed speech recognition ability of 78
percent in the right ear and of 76 in the left ear. The
veteran was diagnosed as having mild to severe bilateral
sensorineural hearing loss. The examiner opined that the
head noise the veteran described was not consistent with the
presence of tinnitus due to noise trauma and since its onset
was in the early 1980s, it was unlikely that it was related
to military noise exposure.
During an April 2003 Ears, Nose, and Throat (ENT)
consultation, the veteran complained of hearing loss and
intermittent episodes of disequilibrium of at least two years
duration, which was caused by physical exertion or when
rising from a seated or lying position. The closed head
injury approximately three years earlier was again noted,
which necessitated surgery to evacuate an intracranial bleed.
Since that injury, the veteran had been diagnosed as having
epilepsy. The veteran stated that he did not have ear pain
or drainage, but complained of gradually worsening hearing
and some ringing in both ears. Physical examination revealed
clear external auditory canals and intact tympanic membranes,
bilaterally. Tuning fork test showed the Rinne was positive
in both ears and the Weber did not deviate. Extraocular
movements were observed and no nystagmus was noted, even
after the veteran stood up and claimed to have mild
dizziness. The diagnoses were hearing loss by history and
disequilibrium by history. The examiner stated that it was
impossible to determine whether the veteran's claimed
disequilibrium episodes were caused by the closed head injury
or from an inservice injury. The veteran was informed that
there was no treatment for this problem other than the
medication he was already taking.
In June 2003, the veteran complained of balance disturbance
for the past four years, which he stated was becoming worse.
He stated that his condition was more pronounced in confined
spaces. In August 2003, the veteran's audiometrics were
rechecked and were reported to indicate a stable mild to
moderate bilateral hearing loss consistent with the March
2003 VA examination. In July 2004, the veteran was fitted
for hearing aids. Otoscopy revealed clear ear canals and
intact tympanic membranes. The veteran continued to complain
of disequilibrium with no relief.
In correspondence of record, the veteran contends that he
should receive a higher disability rating for his bilateral
hearing loss as he has suffered from his severe hearing loss,
which impacted his life not only from a social standpoint,
but also caused a marked interference with his employment.
He argues that the current rating does not adequately reflect
his current severity of his condition.
III. Legal analysis
Bilateral hearing loss
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder. 38
U.S.C.A. § 1155 (West 2002). Separate diagnostic codes
identify the various disabilities. Id. It is necessary to
evaluate the disability from the point of view of the veteran
working or seeking work, 38 C.F.R. § 4.2 (2005), and to
resolve any doubt regarding the extent of the disability in
the veteran's favor. 38 C.F.R. § 4.3 (2005).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2005).
In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R. §§
4.1, 4.2, 4.41 (2005). Consideration of the whole-recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. §§ 4.2 (2005);
Peyton v. Derwinski, 1 Vet. App. 282 (1991).
As noted above, in Fenderson v. West, 12 Vet. App 119 (1999),
the Court emphasized the distinction between a new claim for
an increased evaluation of a service-connected disability and
a case (such as this one) in which the veteran expresses
dissatisfaction with the assignment of an initial disability
evaluation where the disability in question has just been
recognized as service-connected. VA must assess the level of
disability from the date of initial application for service
connection and determine whether the level of disability
warrants the assignment of different disability ratings at
different times over the life of the claim-a practice known
as "staged rating."
Evaluations of defective hearing range from noncompensable to
100 percent for service-connected bilateral hearing loss.
These evaluations are based on organic impairment of hearing
acuity as measured by the results of controlled speech
discrimination testing together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per
second. To evaluate the degree of disability from defective
hearing, the revised rating schedule establishes eleven
auditory acuity levels from Level I for essentially normal
acuity through XI for profound deafness. 38 C.F.R. §§ 4.14,
4.85, Diagnostic Code 6100 (2005).
The regulations provide that in cases of exceptional hearing
loss, i.e. when the puretone threshold at each of the four
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is
55 decibels or more, the rating specialist will determine the
Roman numeral designation for hearing impairment from either
Table VI or Table VIa, whichever results in the higher
numeral. Each ear will be evaluated separately. See 38
C.F.R. § 4.86(a) (2005). The provisions of 38 C.F.R. §
4.86(b) provide that when the puretone threshold is 30
decibels or less at 1,000 hertz, and 70 decibels or more at
2,000 hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results is the higher numeral.
That numeral will then be elevated to the next higher Roman
numeral. Each ear will be evaluated separately. However,
based upon the audiological evaluations described above,
neither 38 C.F.R. § 4.86(a) nor (b) is applicable in this
appeal.
The Board appreciates the veteran's contentions regarding the
impact his hearing loss has on his life. While the Board
sympathizes with the veteran's obvious hearing difficulties,
the Court has noted that the assignment of disability ratings
for hearing impairment are arrived at by a mechanical
application of the numeric designations assigned after
audiological evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992).
The results of the audiometric testing on VA examination in
March 2003 did not demonstrate that the veteran's overall
hearing loss was severe enough to warrant a disability rating
in excess of 10 percent under the rating schedule. The
reported 59 decibel average pure tone threshold loss in the
right ear and the 78 percent correct speech discrimination
score in the right ear, when entered into Table VI of § 4.85,
resulted in a hearing impairment with a numeric designation
of IV in the right ear. The reported 54 decibel average pure
tone threshold loss in the left ear and the 76 percent
correct speech discrimination score in the left ear, when
entered into Table VI of § 4.85, resulted in a hearing
impairment with a numeric designation of IV in the left ear.
When applied to Table VII of § 4.85, the numeric designations
of IV in the right ear and IV in the left ear translate to a
10 percent evaluation for the veteran's service-connected
hearing loss disability. 38 C.F.R. § 4.85, Diagnostic Code
6100 (2005).
Furthermore, although the veteran stated during his April
2003 VA treatment that his hearing was gradually worsening;
his audiometrics were rechecked in August 2003 and were found
to be stable and consistent with the March 2003 VA
examination. Therefore, an additional examination is not
needed and the veteran's hearing loss may be assessed
according to the March 2003 results. 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4) (2005).
The audiometric test results do not support entitlement to an
increased evaluation for bilateral hearing impairment. The
Board is aware that the veteran has been fitted for hearing
aids. The evaluations derived from the rating schedule are
intended to make proper allowance for improvement by hearing
aids. 38 C.F.R. § 4.85 (2005).
The veteran's contentions presented on appeal have been
accorded due consideration; however, the Board concludes that
the medical findings discussed above are more probative of
the current level of disability.
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the veteran's claim, the doctrine is not
for application. 38 U.S.C.A. § 5107(b); see also, e.g.,
Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v.
Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
In exceptional cases where schedular evaluations are found to
be inadequate, the RO may refer a claim to the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, for consideration of "an extraschedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities." 38 C.F.R. § 3.321(b)(1)
(2005). "The governing norm in these exceptional cases is:
A finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards." 38 C.F.R. § 3.321(b)(1)
(2005).
In this case, the RO adjudicated the issue of entitlement to
an extraschedular evaluation pursuant to 38 C.F.R.
§ 3.321(b)(1). See January 2005 supplemental statement of
the case. Although the Board has no authority to grant an
extraschedular rating in the first instance, it may consider
whether the RO's determination with respect to that issue was
proper. See VAOPGCPREC 6-96; Floyd v. Brown, 9 Vet. App. 88,
95 (1996) (Board may consider whether referral to
"appropriate first-line officials" for extraschedular
rating is required); see also Bagwell v. Brown, 9 Vet. App.
337, 339 (1996) (BVA may affirm an RO conclusion that a claim
does not meet the criteria for submission pursuant to
38 C.F.R. § 3.321(b)(1)). The RO found that referral for
extraschedular consideration was not warranted in this case.
The Board agrees.
First, the schedular evaluations in this case are not
inadequate. Higher schedular ratings are provided under
Diagnostic Code 6100, but the medical evidence reflects that
comparable manifestations are not present in this case.
Second, there is no evidence of an exceptional disability as
manifested by related factors such as marked interference
with employment or frequent hospitalizations. It is not
shown by the evidence that the veteran has required
hospitalization for his hearing loss. Hence, he does not
have an exceptional disability as manifested by frequent
hospitalizations. Additionally, the overall picture
presented by the evidence in the claims folder does not
actually reflect "marked interference" in employment due
specifically to his hearing loss. Although the veteran
stated that his hearing loss has interfered with his
employment, he submitted no evidence to support this claim.
Thus, the absence of evidence presenting such exceptional
circumstances preponderates against referring the claim for
consideration of an extraschedular rating for hearing loss.
The disability is appropriately rated under the schedular
criteria.
Peripheral vestibular disorder
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131. With chronic disease
shown as such in service so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes. When the fact of chronicity in service is not
adequately supported, then a showing of continuity of
symptomatology after discharge is required to support a claim
of service connection. 38 C.F.R. § 3.303(b). Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection for
any particular disability, there must be medical evidence of
a current disability; medical evidence, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).
Alternatively, the nexus between service and the current
disability can be satisfied by medical or lay evidence of
continuity of symptomatology and medical evidence of a nexus
between the present disability and the symptomatology. See
Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10
Vet. App. 488, 495 (1997).
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. See Masors
v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2
Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet.
App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Equal weight is not accorded to each piece of evidence
contained in the record; every item of evidence does not have
the same probative value.
After a careful review of the evidence of record, the Board
finds that the preponderance of the evidence is against the
veteran's claim of entitlement to service connection for a
peripheral vestibular disorder.
The veteran's DD Form 214 indicates that the veteran was
awarded Europe-Africa-Mediterranean Campaign Medal with 4
Bronze Stars, which indicates that he engaged in combat. He
contends that the dizziness and disequilibrium he experiences
is related to service and that his post-service head injury
aggravated this condition.
The Board notes that where a combat wartime veteran alleges
he/she suffers disability due to an injury incurred in
service, 38 U.S.C.A. § 1154(b) must be considered. Collette
v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8
Vet. App. 563 (1996); Caluza v. Brown, 7 Vet. App. 498
(1995).
38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard
of proof to determine service connection. Collette, supra.
Specifically, VA regulations provide that in the case of any
veteran who has engaged in combat with the enemy in active
service during a period of war, as in this case, satisfactory
lay or other evidence that an injury or disease was incurred
or aggravated in combat will be accepted as sufficient proof
of service connection if the evidence is consistent with the
circumstances, conditions or hardships of service, even
though there is no official record of such incurrence or
aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. §
3.304(d) (2005); see generally Peters v. Brown, 6 Vet. App.
540, 543 (1994). However, the reduced evidentiary burden
only applies to the question of service incurrence, and not
to the question of either current disability or nexus to
service, both of which generally require competent medical
evidence. Brock v. Brown, 10 Vet. App. 155, 162 (1997);
Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v.
Brown, 8 Vet. App. 459, 464 (1996); see also VAOPGCPREC 12-
99.
While the most recent VA examination in June 2003 did not
result in a diagnosis of a peripheral vestibular disorder,
the examiner did not a history of disequilibrium and it is
apparent that the veteran has been treated for such, to
include at the time of that evaluation. It is also
undisputed that the veteran was exposed to excessive noise as
the result of his combat duty. The appeal of this claim for
service connection turns on the question of whether there is
competent evidence of a causal link between a disability
manifested by disequilibrium and any incident of service, to
include acoustic trauma.
Following the April 2003 ENT examination, the physician
concluded that it was impossible to determine whether the
veteran's claimed disequilibrium episodes were caused by the
closed head injury sustained in 2000 or from an in-service
injury. However, it was also noted in the same examination
report that the veteran complained of intermittent episodes
of disequilibrium of at least two years duration, (emphasis
added), which followed physical exertion or when rising from
a seated or lying position. The veteran was also reported to
have had a closed head injury approximately three years
earlier or decades post-service, for which he had surgery to
evacuate an intracranial bleed. Thus, while the conclusion
neither weighs in favor or against the contended causal
relationship, the history obtained from the veteran for
treatment purposes suggests a post-service onset and
etiology.
The fact that there is no post-service medical records
relating to evaluation or treatment for the veteran's
disequilibrium or any other symptoms attributed to a
peripheral vestibular disorder from the time he was
discharged from service until recent years also weighs
against the claim. The absence of any service medical
records is through no fault of the veteran and, as noted
earlier in this decision, VA has a heightened duty to assist.
However, with respect to negative evidence, the Court of
Appeals for Veterans Claims held that the fact that there was
no record of any complaint, let alone treatment, involving
the veteran's condition for many years, as in this case,
could be decisive. See Maxon v. West, 12 Vet. App. 453, 459
(1999).
The veteran is competent to describe his symptoms, to include
disequilibrium, and the Board has considered his contention
that he currently has a peripheral vestibular disorder linked
to service. However, his lay assertion is not competent
evidence of the requisite nexus. That is, there is no
indication that he possesses the requisite medical knowledge
or education to render a probative opinion involving medical
causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992).
In summary, there is no medical evidence of a peripheral
vestibular disorder or a disability manifested by
disequilibrium until decades post-service, nor is there any
competent evidence of a causal link between a current
diagnosis of such and any incident of service, to include
acoustic trauma. The evidence in this case is not so evenly
balanced so as to allow application of the benefit-of-the-
doubt rule as required by law and VA regulations. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3
(2005). As the preponderance is against the veteran's claim,
service connection for peripheral vestibular disorder is not
warranted.
ORDER
Entitlement to an initial or staged rating in excess of 10
percent for service-connected bilateral hearing loss is
denied.
Service connection for peripheral vestibular disorder is
denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs